Decision Date: 12/11/95 Archive Date:
12/11/95
DOCKET NO. 94-02 548 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Des
Moines, Iowa
THE ISSUE
Whether new and material evidence has been received to
reopen a claim of entitlement to service connection for an
acquired psychiatric disorder including post-traumatic
stress disorder.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Nadine W. Benjamin, Counsel
INTRODUCTION
The veteran served on active duty from September 1967 to
September 1971. This matter comes to the Board of Veterans'
Appeals (Board) on appeal from rating decisions by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Des Moines, Iowa.
In July 1987 and March 1991, the Board denied entitlement to
service connection for an acquired psychiatric disorder
including post-traumatic stress disorder (PTSD). The
veteran has attempted to reopen his claim, and this appeal
ensued after the RO found that no new and material evidence
had been received.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran seeks service connection for PTSD, arguing that
the disorder is the result of stressors that he encountered
while in service.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims
file. Based on its review of the relevant evidence in this
matter, and for the following reasons and bases, it is the
decision of the Board that new and material evidence to
reopen the veteran's claim of entitlement to service
connection for an acquired psychiatric disorder including
PTSD has been received.
FINDINGS OF FACT
1. In July 1987 and again in March 1991, service connection
was denied for an acquired psychiatric disorder including
PTSD by the Board.
2. Evidence added to the record since the March 1991
decision includes evidence which is not duplicative or
cumulative and which is sufficiently relevant and probative,
when viewed in conjunction with the evidence previously of
record, to raise a reasonable possibility of an outcome
different from that reached in March 1991.
CONCLUSION OF LAW
Evidence received since the March 1991 Board decision
denying service connection for PTSD is new and material, and
the claim is reopened. 38 U.S.C.A. § 5108 (West 1991); 38
C.F.R. § 3.156(a) (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Service connection for an acquired psychiatric disorder
including PTSD was denied in a Board decision of July 1987,
and in March 1991, the Board again denied service connection
for PTSD. The prior Board decisions are final. 38 U.S.C.A.
§ 7104(b) (West 1991). However, the claim will be reopened
if new and material evidence is submitted. 38 U.S.C.A. §
5108 (West 1991); 38 C.F.R. § 3.156(a) (1994); Manio v.
Derwinski, 1 Vet.App. 140(1991).
New evidence is that which is not merely cumulative of other
evidence in the record. Colvin v. Derwinski, 1 Vet.App.
171, 174 (1991). Material evidence is that which is
sufficiently relevant and probative of the issue at hand to
establish a reasonable possibility that the outcome would
differ when the new evidence is considered in light of all
the evidence. Id. Further, for the purpose of determining
whether a case should be reopened, the credibility of the
evidence added to the record is to be presumed. Justus v.
Principi, 3 Vet.App. 510, 513 (1992).
The evidence which was of record at the time of the prior
Board decisions included the veteran's service medical
records, VA examination, hospitalization and treatment
records, private medical records and personal hearing
testimony. The service medical records showed treatment for
a personality disorder, and post-service medical records
showed treatment for various mental disorders, including
PTSD, which was found by a private physician and by VA when
the veteran was hospitalized in 1986. It was noted that the
diagnosis was not substantiated on two subsequent VA
hospitalizations in 1986. It was found by the Board that
the veteran did not have PTSD or any chronic psychiatric
disability which originated in service. The evidence
submitted subsequent to the March 1991 Board decision
includes VA examination reports, VA treatment and
hospitalization records, statements concerning stressors by
the veteran, hearing testimony of the veteran, a lay
statement from a service comrade of the veteran, a statement
from a social worker at the Vet Center, military reports of
command chronologies, and a December 1992 statement from a
VA employee who is Chief of the Medical Administration
Service.
The VA medical records show treatment for psychiatric
complaints and diagnoses of PTSD in November 1990 and April
1993. The VA employee statement of December 1992 indicates
that the veteran was first seen by a VA physician in 1985
and was continuing to be seen with a diagnosis of PTSD. The
veteran reported in a written statement and at his personal
hearing concerning stressors, the suicide of a Marine with
whom he was stationed, and the witnessing of the death of
civilians who were trying to defect in Cuba. A service
comrade reported in a notarized statement that he had served
with the veteran and that a Marine did commit suicide while
the veteran was serving with him and that they witnessed
Cuban civilians being shot. The social worker stated that
he had been the veteran's primary therapist at the Vet
Center since 1985, and that he firmly believed that the
veteran did experience the stressful situations he
described, and that these traumatic events in service
resulted in the development of PTSD.
The above evidence is clearly new and material. Diagnoses
of PTSD have been rendered by more than one examiner, and
the veteran has outlined stressors which have been
corroborated by a service comrade. Further a practitioner
has opined that the veteran did experience the stressors he
reports occurred during service, and that those stressors
led to the development of PTSD. While the practitioner is a
social worker, and not a physician, he is a professional who
has worked with the veteran for several years. The evidence
is new and material and raises the possibility of a
different outcome. Accordingly, the claim is reopened.
ORDER
The request to reopen the claim for service connection for
an acquired psychiatric disorder including PTSD is granted.
REMAND
The Board notes that there are conflicting findings
concerning the veteran's psychiatric disorder. At entrance
into service in September 1967, the veteran gave a history
of depression or excessive worry. A medical certificate,
dated in April 1969, certified that the veteran had been
seen in a psychiatric consultation. There was a reference
to suicidal statements, and the examiner noted that the
veteran was an immature person. No psychiatric diagnosis
was given. In June 1970, he was treated after complaining
of sleep problems, memory problems and fear of hurting
himself. The veteran stated that he had been feeling worse
since being at Guantanamo Bay. The examiner found no
evidence of psychosis or thought disorder, and passive
aggressive personality was diagnosed. His September 1971
separation examination report showed a history of passive
aggressive personality. A July 1985 VA examination report
shows a diagnosis of mixed personality disorder; histrionic
and antisocial traits. PTSD was diagnosed when the veteran
was hospitalized at a VA facility in August 1985. Various
other diagnoses have been offered for the veteran's nervous
condition, including PTSD with depression, dysthymic
disorder, schizoaffective disorder, schizophrenia,
undifferentiated type, adjustment disorder with disturbance
of emotions and major depression. The veteran has not
undergone a recent VA psychiatric examination.
The veteran testified at his June 1993 personal hearing that
he experienced several stressors during service at
Guantanamo Bay in Cuba. He stated that he witnessed
civilians who were trying to defect being shot and left to
die; he reported that he was not able to assist them. He
also testified that a friend of his committed suicide
because of atrocities witnessed in Cuba. There is of record
a lay statement from a service comrade of the veteran
stating that he served with the veteran in Cuba, and that a
fellow Marine committed suicide. He also reported that
Cuban civilians were shot at while trying to defect. The
veteran has related stressful events that occurred in boot
camp and when he was in DaNang in 1968. Complete details
concerning these incidents are not of record.
The veteran has reported that he was receiving disability
benefits from the Social Security Administration (SSA).
Records concerning this have not been associated with the
claims folder.
Service connection for PTSD requires medical evidence
establishing a clear diagnosis of the condition, credible
supporting evidence that the claimed inservice stressor
actually occurred, and a link, established by medical
evidence, between current symptomatology and the claimed
inservice stressor. 38 C.F.R. § 3.304(f) (1994). Where the
stressor(s) in question are noncombat related, available
service medical records must support, that is, not
contradict the veteran's lay testimony concerning his
noncombat-related stressors. Doran v. Brown, 6 Vet.App. 283
(1994). If the claimed stressor(s) are not combat-related,
the veteran's lay testimony regarding inservice stressors is
insufficient to establish occurrence of the stressor and
must be corroborated by credible supporting evidence. There
is no requirement that the corroboration only be found in
the service records. Id.
VA has a duty to assist in the development of facts
pertinent to an appellant's claim. 38 U.S.C.A. § 5107(a)
(West 1991); 38 C.F.R. § 3.103(a) (1994). Where the record
before the Board is inadequate to render a fully informed
decision on the issue of service connection, a remand to the
RO is required to fulfill the statutory duty to assist.
Ascherl v. Brown, 4 Vet.App. 371, 377-78 (1993).
In view of the foregoing, the case is hereby REMANDED to the
RO for the following development:
1. The RO should request that the veteran identify the
names, addresses and approximate dates of treatment for all
VA and non-VA health care providers who have treated him
for nervous problems any time before or since service. With
any necessary authorization from the veteran, the RO should
attempt to obtain copies of pertinent treatment records
identified by the veteran which are not currently of record.
2. The RO should request from the veteran a comprehensive
statement containing as much detail as possible regarding
the stressors to which he alleges he was exposed in service.
The veteran should be asked to provide specific details of
the claimed stressful events during service, such as dates,
places, detailed descriptions of events and identifying
information concerning any other individuals involved in the
events, including their names, ranks, units of assignment or
any other identifying detail. The veteran should be advised
that this information is vitally necessary to obtain
supportive evidence of the stressful events and that he must
be as specific as possible because without such details an
adequate search for verifying information can not be
conducted. The veteran should also be advised of
alternative evidence methods to support his claim concerning
stressors such as buddy statements, diaries, letters, etc.
Sufficient time should be given to the veteran for
submission of this evidence.
3. Thereafter, the RO should contact the Director, National
Archives and Records Administration (NARA), ATTN: NCPNA-O,
9700 Page Boulevard, St. Louis, Missouri 63132, and request
copies records in the veteran's OMPF file including morning
reports and any other information regarding activities that
would shed light on events related by the veteran. Any such
information obtained should be combined with the stressor
information that has been obtained from the appellant, and
should be forwarded to the Commandant of the Marine Corps,
Headquarters, United States Marine Corps, Code MMRB,
Quantico, Virginia 22134-0001, for verification and for
copies of monthly unit diaries.
4. The RO should obtain from the SSA copies of all
available medical evidence relied upon in its disability
determination relative to the veteran. Once obtained, this
evidence should be associated with the veteran's claims
folder.
5. Following the above, the veteran should be examined by a
panel of two VA board certified psychiatrists, if available,
who have not previously treated or examined the veteran, to
determine the nature and extent of any current psychiatric
disorder. Each psychiatrist should conduct a separate
examination and correlate their findings. The examination
reports should contain detailed accounts of all
manifestations of psychiatric pathology found to be present.
If there are different psychiatric disorders, the panel
should reconcile the diagnoses and should specify which
symptoms are associated with each disorder. If certain
symptomatology cannot be disassociated from one disorder or
another, it should be specified. The entire claims folder,
which contains several reports of examination and
considerable treatment records, and a copy of this REMAND
must be made available to and reviewed by the examiners
prior to the examinations. Any necessary special studies or
tests, including psychological testing, should be
accomplished. The examiners should express an opinion as to
whether the inservice complaints reflected a chronic
acquired psychiatric disorder at that time.
If a chronic acquired psychiatric disorder was not present
in service but is determined to be present at this time, the
examiners should express an opinion as to the likely onset
of the disorder as well as the relationship between the
inservice symptomatology and any current psychiatric
pathology. Should PTSD be found, the examiners should
report the circumstances of the veteran's stressors,
including as much as possible, dates, locations, names of
personnel involved, units of assignment and sequence of
events, and determine whether it is as least likely as not
that the diagnosed PTSD is related to the claimed inservice
stressful events. A complete rationale for all opinions and
conclusions expressed should be given.
6. The RO should then review the record and ensure that all
the above actions have been completed. When the RO is
satisfied that the record is complete, the RO should
adjudicate the issue of entitlement to service connection
for an acquired psychiatric disorder including PTSD on a de
novo basis.
If the benefit sought on appeal is not granted to the
veteran's satisfaction, the RO should issue a Supplemental
Statement of the Case, and the veteran and his
representative should be provided an opportunity to respond.
The case should then be returned to the Board for further
appellate consideration, if otherwise in order. In taking
this action, the Board implies no conclusion, either legal
or factual, as to any ultimate outcome warranted. No action
is required of the veteran until he is notified by the RO.
F. JUDGE FLOWERS
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 38
C.F.R. § 20.1100(b) (1994).
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